2015 #23 Self Defense Weekly Law Report

Law of Self Defense: Weekly Law Report
2015 #23 (May 25-29, 2015)

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2015 www.lawofselfdefense.com
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2015 #23 (May 25-29, 2015)
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Frequently Asked Questions

Q:
What is the Law of Self Defense: Law Report Weekly?
A:
Each week Law of Self Defense staff review self-defense court decisions from around the country. Those
we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The
cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents
and then by individual case.
Q:
The Law of Self Defense is well-known for translating the legalese of self-defense law into plain
English easily understood by non-lawyers, as you do in your books, seminars, online training, and
blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain
English?
A:
Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for
weekly reports of this type. Therefore we consider these reports a graduate-level product, for people
who already have a solid understanding of the legal principles of self-defense law. To get up to speed we
encourage you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available
from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level.
You may also consider one of our state-specific live Law of Self Defense Seminars held all over the country
or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.
Q:
Do you recount each of the cases in their entirety?
A:
No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we
only summarize the portions of the cases that directly involve issues of self-defense law. What we do
include are the case citation, a list of the key self-defense law issues covered in that case, the date of the
decision, and the text of the decision that discusses the specific self-defense laws of interest.
The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.
Q:
What if I want to read the entire case?
A:
Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact,
strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best
way to understand the fullest context of the courts decisions.
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Table of Contents
CALIFORNIA
Page
In re Brian, 2015 Cal. App. Unpub. LEXIS 3730 (CA Ct. App. 2015)
Key issues:
Tear gas is a dangerous weapon and its use (except in self-defense) is a
crime and may allow enhancement of a charge or sentence; Threatening to
use a weapon is use of that weapon; Objects whose ordinary intended use
is as a weapon designed to cause death or grave bodily harm are dangerous
or deadly weapons as a matter of law; Objects not designed as weapons but
which are used in a manner intended to cause death or grave bodily harm
are also dangerous or deadly weapons based on the circumstances of their
use; Pepper spray is a dangerous weapon as a matter of law, because it is
intended use causes death or grave bodily harm, to wit, disablement through
difficulty of breathing, burning of eyes, nausea, and temporary incapacitation.
Date:
May 28, 2015
People v. King, 2015 Cal. App. Unpub. LEXIS 3720 (CA Ct. App. 2015)
Key issues:
Burden of production, claim of self-defense not raised until trial; Defense of
Accident with a firearm; Consciousness of guilt evidence: hiding weapon,
lying to 911/police/media; Innocence, provocation, pre-textual self-defense;
Date:
May 28, 2015
TENNESSEE
State v. Montgomery, 2015 Tenn. Crim. App. LEXIS 415 (TN Ct. App. 2015)
Key issues:
Stand-Your-Ground, 39-11-611(b); Statutory prohibition of conviction for
illegal gun possession of gun used in self-defense, 39-17-1322; Being
engaged in an unlawful activity of any sort (including illegal possession of a
gun) strips defendant of Stand-Your-Ground and re-imposes the legal duty to
retreat, but it does not strip the defendant of right to claim self-defense.
Date:
May 28, 2015
11
UTAH
State v. Alzaga, 2015 UT App 133 (UT Ct. App. 2015)
Key issues:
Impermissible to claim of self-defense by person attempting/committing/
fleeing a felony [Utah Code 76-2-402(2)(a)(ii)]; Burden of persuasion on
self-defense is on the State; "Forcible felony" includes "arson, robbery, and
burglary as defined in Title 76, Chapter 6 [of the Utah Code], Offenses
Against Property," as well as "[a]ny other felony offense which involves the
use of force or violence against a person so as to create a substantial danger
of death or serious bodily injury." [Utah Code Ann. 76-2-402(4)(a), (b)]
Date:
May 29, 2015
23
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CALIFORNIA
In re Brian, 2015 Cal. App. Unpub. LEXIS 3730 (CA Ct. App. 2015)
Key issues:
Tear gas is a dangerous weapon and its use (except in self-defense) is a crime and may allow
enhancement of a charge or sentence; Threatening to use a weapon is use of that weapon;
Objects whose ordinary intended use is as a weapon designed to cause death or grave bodily
harm are dangerous or deadly weapons as a matter of law; Objects not designed as weapons but
which are used in a manner intended to cause death or grave bodily harm are also dangerous or
deadly weapons based on the circumstances of their use; Pepper spray is a dangerous weapon
as a matter of law, because it is intended use causes death or grave bodily harm, to wit,
disablement through difficulty of breathing, burning of eyes, nausea, and temporary
incapacitation.
Date:
May 28, 2015
Decision:
When confronted by store loss prevention personnel
designed to be dangerous and appeared to be
after having stolen store merchandise, defendant
capable of carrying out its design, which suffices.
Brian P. brandished but did not discharge a canister

labeled "pepper spray." The trial court sustained
Accordingly, we affirm the judgment.
allegations that defendant committed robbery and

burglary, used tear gas in commission of the offenses,
BACKGROUND
and personally used a dangerous weapon, namely

tear gas. On appeal, defendant contends that
On February 20, 2013, defendant and a companion
brandishing a tear gas canister does not without more
took seven portable Bluetooth speakers from a Wal-
constitute "use" of tear gas, and no evidence
Mart without paying for them. When they were
supported the finding that defendant used a
confronted in the parking lot by Kyle McDaniel, a loss
dangerous weapon. We disagree with both
prevention officer employed by the store, defendant
contentions. Brandishing a weapon constitutes "use"
produced a canister labeled "pepper spray" and said
whether or not the weapon is discharged. And
he would spray McDaniel if he did not get back. After
whether the pepper spray in defendant's canister, if
defendant was subdued, he admitted he threatened
any, was actually dangerous is irrelevant for purposes
McDaniel with the pepper spray to prevent him from
of the enhancement statute, as the weapon was
finding the speakers and said he carried the spray for

protection.
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"Threatening another with any weapon, including a
At trial, the only evidence concerning the contents of
tear gas weapon," constitutes "use" of the weapon.
the pepper spray canister was a photograph of the
(People v. Hamilton (1998) 61 Cal.App.4th 149, 154
canister bearing a label that said, "18% Pepper
[defendant pointed an unloaded tear gas gun at the
Spray" and "Warning: Strong Irritant."
victim and clicked the trigger]; People v. Wims (1995)

10 Cal.4th 293, 302 ["use" includes intentionally
After a contested hearing, the trial court found
displaying a weapon in a menacing manner].) The
defendant violated Penal Code sections 211
weapon need not be discharged or even be capable
(robbery), 459 (burglary), and 22810, subdivision (g)
of discharge, so long as there is evidence it was
(1) (use of tear gas), and found true the allegation
designed to discharge tear gas and gave the
that defendant personally used a dangerous weapon
appearance of the capability to do so. (See People v.
within the meaning of Penal Code section 12022,
Nelums (1982) 31 Cal.3d 355, 359-360 [defendant
subdivision (b)(1). The trial court declared defendant
used an inoperable firearm].)
a ward of the court, placed him on home probation,

and terminated wardship as of the same date.
Here, defendant brandished a pepper spray canister

and told McDaniel he would use it. That constituted
He timely appealed.
use of a tear gas weapon for purposes of Penal Code

section 22810.
DISCUSSION
B. Use of a "Dangerous" Weapon
A. "Use" of Tear Gas
"A person who personally uses a deadly or dangerous
Defendant contends brandishing a pepper spray
weapon in the commission of a felony or attempted
canister without discharging any spray does not
felony shall be" subject to a sentence enhancement.
constitute "use" of the weapon. We disagree.
(Pen. Code, 12022, subd. (b)(1).) Defendant

contends insufficient evidence supported the finding
"[A]ny person who uses tear gas or any tear gas
that he used a deadly or dangerous weapon because
weapon except in self-defense is guilty of a public
there was no evidence his pepper spray canister was
offense." (Pen. Code, 22810, subd. (g)(1).) A tear
loaded, no evidence that any spray it may have
gas weapon is "[a]ny shell, cartridge, or bomb
contained was of sufficient strength to be dangerous,
capable of being discharged or exploded, when the
and no evidence that pepper spray is itself
discharge or explosion will cause or permit the
dangerous.
release or emission of tear gas." (Pen. Code,

17250, subd. (a).) Tear gas is "any liquid, gaseous or
"'In order to find "true" a section 12022(b) allegation, a
solid substance intended to produce temporary
fact finder must conclude that, during the crime or
physical discomfort or permanent injury through being
attempted crime, the defendant himself or herself
vaporized or otherwise dispersed in the air." (Pen.
intentionally displayed in a menacing manner . . . an
Code, 17240, subd. (a).)
instrument capable of inflicting great bodily injury or

death. . . .' . . . In determining whether an object which
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is not inherently deadly or dangerous has been used
as a dangerous or deadly weapon, 'the trier of fact
Pepper spray is a dangerous weapon as a matter of
may consider the nature of the object, the manner in
law, as the ordinary use for which it is designed
which it is used, and all other facts relevant to the
establishes its character as such. (See Pen. Code,
issue.'" (People v. Blake (2004) 117 Cal.App.4th 543,
17250, subd. (a) [tear gas "weapon" is any cartridge
555, fns. omitted.)
capable of being discharged and releasing tear gas];

see, e.g., United States v. Neill (9th Cir. 1999) 166 F.
"'[A] distinction should be made between two classes
3d 943, 949-950.) Although the effects of pepper
of "dangerous or deadly weapons." There are, first,
spray are normally temporary, there is no question
those instrumentalities which are weapons in the strict
that it may disable by causing difficulty breathing,
sense of the word, and, second, those
burning eyes, nausea, and temporary incapacitation.
instrumentalities which are not weapons in the strict
(People v. Blake (2004) 117 Cal.App.4th 543, 558.)
sense of the word, but which may be used as such.
Even if pepper spray were not inherently dangerous,
The instrumentalities falling in the first class, such as
it may be fairly inferred from the evidence here that
guns, dirks and blackjacks, which are weapons in the
defendant intended to use his canister as a
strict sense of the word and are "dangerous or
dangerous weapon, in that he brandished it at
deadly" to others in the ordinary use for which they
McDaniel to dissuade him from carrying out his duty,
are designed, may be said as a matter of law to be
a goal that could have been accomplished only if the
"dangerous or deadly weapons." This is true as the
perceived danger was great enough to overwhelm the
ordinary use for which they are designed establishes
duty.
their character as such. The instrumentalities falling

into the second class, such as ordinary razors,
It is true the only evidence of the degree of danger
pocket-knives, hatpins, canes, hammers, hatchets
posed by defendant's pepper spray canister was that
and other sharp or heavy objects, which are not
it appeared to be such a canister, it was labeled
weapons in the strict sense of the word and are not
"pepper spray," and the label stated the spray was
"dangerous or deadly" to others in the ordinary use
"18% strength" and constituted a "strong irritant." This
for which they are designed, may not be said as a
evidence does not establish the canister was loaded
matter of law to be "dangerous or deadly weapons."
or that any pepper spray it contained was of sufficient
When it appears, however, that an instrumentality
strength to injure McDaniel. But the canister was
other than one falling within the first class is capable
designed to injure and reasonably appeared to be
of being used in a "dangerous or deadly" manner, and
capable of doing so, and defendant depended at least
it may be fairly inferred from the evidence that its
on that appearance to dissuade McDaniel from
possessor intended on a particular occasion to use it
apprehending him. It does not matter whether the
as a weapon should the circumstances require, we
spray itself would have been capable of injuring
believe that its character as a "dangerous or deadly
McDaniel had it been discharged. The legislative
weapon" may be thus established, at least for the
purpose underlying weapons penalty enhancement
purposes of that occasion.'" (People v. Graham
statutes is to deter those engaged in felonies from
(1969) 71 Cal.2d 303, 327-328, disapproved on other
creating a risk of death or injury by having a weapon
grounds in People v. Ray (1975) 14 Cal.3d 20, 32.)
at the scene of the crime. (People v. Bland (1995) 10
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Cal.4th 991, 1001.) The risk arises not only from
reasonable appearance of being able to do so.
potential use of the weapon to protect the defendant
(People v. Nelums, supra, 31 Cal.3d at pp. 359-360.)
or ward off police, but also from potential police

reaction to the weapon itself. The deterrence
DISPOSITION
objective is best fulfilled by imposing an enhanced

penalty whether or not the weapon is functional, so
The judgment is affirmed.
long as it was designed to function and gave the
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CALIFORNIA
People v. King, 2015 Cal. App. Unpub. LEXIS 3720 (CA Ct. App. 2015)
Key issues:
Burden of production, claim of self-defense not raised until trial; Defense of Accident with a
firearm; Consciousness of guilt evidence: hiding weapon, lying to 911/police/media; Innocence,
provocation, pre-textual self-defense;
Date:
May 28, 2015
Decision:
A jury found defendant Jerry Lee King guilty of first
he had gunshot residue on his hand, hid the gun, and
degree murder and found he personally used and
consistently denied shooting Griffin until his trial
intentionally discharged a firearm, causing death.
testimony.
(Pen. Code, 187, 12022.53, subds. (b), (c), (d).)

The trial court sentenced defendant to prison for 50
The defense theory was that Griffin--larger than
years to life and he timely appealed.
defendant, and a drug-user with a violent past-arrived, asked if defendant was going to shoot him,
On appeal, defendant contends the trial court
then charged at defendant, who did not know whether
prejudicially misinstructed the jury regarding self-
the rifle he held was loaded. Defendant brought the
defense, provocation, and lying in wait. Disagreeing,
rifle up and fired it accidentally. Defendant lied about
we shall affirm.
the shooting because he was afraid. The People

argued defendant's claims of accident or self-defense
BACKGROUND
should be rejected, because they were not raised until

trial and also in part argued that defendant lacked
On December 9, 2012, defendant fatally shot his
credibility because of his three prior felony
uncle, Willis Griffin, with a rifle.
convictions.
The People's theory was that defendant, who lived
At trial, defendant testified Griffin outweighed him by
with his mother in a rural area, had been asked to
at least 50 pounds. The day before the killing he
leave, and his mother enlisted Griffin to help evict
overheard his mother talking to Griffin, who said he
him. He had threatened to shoot Griffin the day
would get defendant out of the house the next day,
before, and about a week before the killing threatened
which made him feel bad and "tore [him] up inside."
to beat Griffin because he thought Griffin was seeing
The next day defendant argued with his mother as
defendant's ex-girlfriend. When Griffin arrived at the
she prepared to leave, and threatened to stab the
residence on the day of the murder, defendant walked
tires he had bought for her car. He fell asleep, woke
75 feet from the residence towards him and shot him
up, and heard Griffin's motorcycle. He believed he
through the heart from 10 feet away. After the killing

was going to be kicked out. He armed himself
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because he was afraid of Griffin, having seen him
A. Background
beat his mother's ex-husband with a baseball bat and

"do some pretty mean things" to others. He added
The trial court gave the pattern CALCRIM instructions
about Griffin that "[w]hen he snaps, he snaps."
on self-defense and imperfect self-defense. These
Defendant did not check to see if the rifle was loaded.
instructions required the jury, before returning a

murder verdict, to find that the People had proven
Defendant testified that when Griffin stopped his
beyond a reasonable doubt that defendant had not
motorcycle, he looked at defendant--who was about
acted to defend himself, whether defendant's belief in
10 feet away, holding the rifle with one arm--and said
the need to do so was objectively reasonable or not.
"what are you going to do, fucking shoot me[?]" As
As to each defense, the jury was instructed to
Griffin tried to put the kickstand down, he hit his leg,
consider defendant's knowledge of Griffin's prior
swore, dismounted from the bike, and started toward
threatening or harmful acts in evaluating defendant's
defendant. Defendant described Griffin's advance
belief. As to regular self-defense, the jury was
"Like a football tackle. Like he was going to tackle me.
instructed defendant could stand his ground.
Like he started to run at me." Defendant then "pulled

the gun up and it just went off." It was an accident.
The trial court also gave CALCRIM No. 3472, as
Defendant admitted hiding the gun, and lying to the
follows: "A person does not have the right to self-
911 operator, the police, and the media. He loved his
defense if he or she provokes a fight or quarrel with
uncle, who had practically raised him. Despite this
the intent to create an excuse to use force."
affection, he brought the rifle "because I thought if I

had the gun in my hands that he wouldn't come after
Defense counsel argued in part that because of
me physically. . . . That we could actually just argue
Griffin's size, violent past, and his sudden lunge
this out and then I wouldn't have to leave."
towards defendant, defendant actually believed in the

need to employ deadly force to defend himself.
DISCUSSION
During rebuttal, the prosecutor argued, "A person

doesn't have the right to self-defense if he provokes
the fight or [acts] with an intent to create an excuse to

use force. Well, I'm going to go out there with this
Pretextual Self-Defense
rifle, when Willis sees it [and] says, what are you

going to do, shoot me, then it's going to be okay that I
Defendant contends the trial court should not have
do. That's not the way the law works."
instructed the jury on the concept of pretextual selfdefense. He concedes he did not object to this
B. Analysis
instruction in the trial court, but contends we should

review his claim for various reasons. We elect to
To illustrate the concept of pretextual self-defense,
address the claim on the merits, and reject the claim
counsel cites an unforgettable scene from Shane,
of error.
where Jack Palance's character--a highly experienced

gunfighter--goads Elisha Cook, Jr.'s character--an
ordinary "sodbuster"--into reaching for his revolver,
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whereupon Palance's character shoots him down,
Accordingly, contrary to defendant's view, substantial
having planned the entire scenario to absolve himself
evidence supported the instruction, and therefore the
of liability, because he did not draw first. But,
trial court did not err in giving it to the jury.
Hollywood notwithstanding--and regardless of

whether the film correctly conveyed the extant law in
Moreover, the trial court instructed the jury that not all
19th Century Wyoming--our Supreme Court has held
of the instructions were applicable, depending on its
that "[s]elf-defense is not available as a plea to a
findings about the facts of the case. The prosecutor
defendant who has sought a quarrel with the design
emphasized the trial court's instruction that not all
to force a deadly issue and thus, through his fraud,
instructions would necessarily apply. We presume the
contrivance, or fault, to create a real or apparent
jury would follow the instructions and disregard the
necessity for killing." (People v. Hecker (1895) 109
pretextual self-defense instruction if it did not find the
Cal. 451, 462.)
facts supported it. (See People v. Sanchez (2001) 26

Cal.4th 834, 852.) It did not, as defendant contends,
Defendant contends "nothing remotely similar"
impair the other self-defense instructions, which
happened in this case. We disagree. The jury could
required the People to disprove both the perfect and
plausibly find that defendant carried the rifle with him
imperfect self-defense theories. (See People v. Olguin
to goad Griffin into making a threatening move.
(1994) 31 Cal.App.4th 1355, 1381 [construing similar
Defendant's own testimony shows that after Griffin
instruction, but rejecting claim that it "might have kept
saw the gun, he in effect scoffed at it, taunting
the jury from evaluating [the] self-defense claim"].)
defendant by asking if he was going to "fucking shoot"
This instruction did not negate or weaken those
Griffin. Then, when Griffin got off the motorcycle,
instructions, nor did the prosecutor's argument.
according to defendant, Griffin indeed rushed towards

defendant, whereupon, in defendant's version, the
II
rifle discharged as he brought it up defensively. The

very fact he greeted his uncle with a rifle in hand
[...]
could be viewed by the jury as provocation by

defendant, because the jury was free to disbelieve
DISPOSITION
defendant's testimony that he held the rifle in order to

ensure a peaceful dialogue with Griffin.
The judgment is affirmed.
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TENNESSEE
State v. Montgomery, 2015 Tenn. Crim. App. LEXIS 415 (TN Ct. App. 2015)
Key issues:
Stand-Your-Ground, 39-11-611(b); Statutory prohibition of conviction for illegal gun possession

of gun used in self-defense, 39-17-1322; Being engaged in an unlawful activity of any sort
(including illegal possession of a gun) strips defendant of Stand-Your-Ground and re-imposes the
legal duty to retreat, but it does not strip the defendant of right to claim self-defense.
Date:
May 28, 2015
Decision:
The Defendant, Deanty Montgomery, appeals as of
November 27, 2012, a Knox County grand jury
right from his jury convictions for aggravated assault,
charged the Defendant in a five-count indictment with
unlawful possession of a weapon, and misdemeanor
the following: Count 1 -- attempted first degree
reckless endangerment, which resulted in an effective
murder; Count 2 -- employment of a firearm during
five-year sentence. On appeal, the Defendant raises
the commission of a dangerous felony; Count 3 --
the following issues for our review: (1) whether the
employment of a firearm during the commission of a
trial court properly permitted the State's argument that
dangerous felony by one having a prior conviction for
the Defendant was engaged in unlawful activity and
a dangerous felony; Count 4 -- unlawful possession of
was, therefore, not excused from the duty to retreat
firearm by one having been convicted of a felony drug
under a theory of self-defense; (2) whether the trial
offense; and Count 5 -- aggravated assault. See
court committed error during jury deliberations in its
Tenn. Code Ann. 39-12-101, -13-102, -13-202,
response to a question from the jury about a person's
-17-1307, & -17-1324.
duty to retreat when engaged in an unlawful activity;

and (3) whether the evidence is sufficient to support
Officer Lee Shaw of the Knoxville Police Department
his convictions. Following our review, we affirm the
("KPD") testified that he patrolled the Walter P. Taylor
trial court's judgments. [ . . . ]
Homes area in June 2012 and responded to a call

concerning a shooting in front of the market on June
OPINION
9, 2012. Upon his arrival, he saw the victim lying

behind a van, which was parked approximately fifteen
FACTUAL BACKGROUND
to twenty feet from the front entrance of the market.

Officer Shaw observed that the victim was suffering
This case arises out of a June 9, 2012 confrontation
from multiple gunshot wounds, so he called for an
between the Defendant and Maurice Davis ("the
ambulance and secured the scene.
victim") in front of the Walter P. Taylor Homes' market

in Knoxville, which resulted in the Defendant's
Several shell casings were found on the scene
shooting the victim multiple times. Thereafter, on

leading "from the back of the van towards the
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northeast," and "bullet impacts" were seen on the van
cousin had called him and advised that he had a large
and a nearby newspaper stand, in addition to the
quantity of crack cocaine for sale if the Defendant
victim's wounds. A total of five shell casings were
knew of any interested buyers. Thereafter, the
recovered and sent to the crime lab for testing.
Defendant was contacted by the victim, also a familial

relation, who coincidently was seeking to make just
KPD Investigator Lance Halseth was able to speak
such a purchase. Because it was family, the
with one eyewitness at the scene and later with the
Defendant agreed to facilitate the exchange, referring
victim after his arrival at the University of Tennessee
to himself as the "middleman" in the transaction. The
("UT") Medical Center where he received treatment
Defendant then brokered a deal between the victim
for his injuries. From his investigation, Inv. Halseth
and his cousin for $1,125-worth of crack cocaine,
developed the Defendant as a suspect and prepared
which took place on June 7, 2012. A few hours later,
a photographic array for the victim to view. The victim
the victim contacted the Defendant, advising him that
identified the Defendant as the shooter,1 according to
his customers did not like the taste of the crack
Inv. Halseth, and a warrant was issued for the
cocaine. The Defendant offered to return with the
Defendant's arrest. Inv. Halseth also asked the
victim to the seller's residence, but the victim did not
market's clerk for security footage of the shooting, but
show up.
he was told that the camera was not working at that

time.
The Defendant told Inv. Halseth that, during the early

morning hours of June 9, 2012, the victim, along with
Registered Nurse Dennis Downhour testified that he
the victim's father, Maurice Johnson, confronted the
treated the victim when he arrived at UT Medical
Defendant about the money that they believed was
Center on June 9, 2012, and that he observed
owed to the victim. According to the Defendant, the
multiple gunshot wounds to the victim's shoulder,
victim pulled a TEC-9 semi-automatic pistol on him.
hand, and legs. The victim was immediately taken to
The Defendant claimed that they forced him into the
surgery due to the femoral fracture in his leg, which
car and that they drove to the seller's house to
"can be very dangerous" due to the amount of blood
demand a refund. However, when they arrived at the
loss, according to Nurse Downhour. After reviewing
house, no one answered the door. They later let the
his notes, Nurse Downhour could not definitely say
Defendant go.
whether the Defendant was shot in the back of the
The Defendant maintained that, later that day, he
shoulder or if it was merely an exit wound.
called the victim and offered to reimburse him for half

of the money he paid for the drugs. While en route to
The Defendant was arrested in the weeks that
Walter P. Taylor Homes, the Defendant heard from
followed, and following waiver of his Miranda2 rights,
several people that the victim was with his father at
he spoke with Inv. Halseth on July 18, 2012. The
the Walter P. Taylor Homes complex looking for the
Defendant's statement was played for the jury.
Defendant, was armed, and was threatening to kill

him.
In the statement, the Defendant described the events

as a "drug deal gone bad" and provided the following
Once the Defendant arrived at Walter P. Taylor
details to Inv. Halseth. The Defendant stated that a
Homes, he stopped to speak with L'Amour Sly and
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Tomichael Bennett. While talking, the Defendant saw
to talk with Tomichael Bennett and the Defendant. As
the victim and his father walk past him headed
they were conversing, Mr. Sly saw the victim and the
towards the nearby market. Although they did not stop
victim's father walk past them. According to Mr. Sly,
to speak to him, the Defendant said he could see the
the victim had a TEC-9 in his backpack, and the
outline of the TEC-9 inside the victim's backpack at
victim's father had black gloves and a handgun in his
that time. According to the Defendant, he wanted to
pockets. Mr. Sly, along with Mr. Bennett and the
speak with the victim, so he followed the victim inside
Defendant, proceeded to the neighborhood market,
the market. He stated that he did so in order to
where they went inside and made some purchases.
appease the victim and negotiate an agreeable
When Mr. Sly exited, he saw the victim and his father
outcome.
"standing on the other side of the van" that was

parked in front of the store and the Defendant
Because the victim was with several friends while
"standing with his back against the door." Mr. Sly
inside the store, the Defendant went outside and
heard the victim and the Defendant talking, and the
waited for the victim to exit. Once outside, the
conversation began "getting heated."
Defendant again told the victim that he would give

him half of the cocaine purchase price, but the victim
Mr. Sly saw the victim turn towards the van and walk
was not satisfied with that offer, stating that the
to the opposite side while taking off his backpack. The
Defendant was trying to "play" him. The Defendant
victim's father, who was standing behind a metal
responded that he was only trying the resolve the
newspaper receptacle at this point, started putting his
matter. He then saw the victim walk behind the van,
black gloves on, so Mr. Sly thought "[sjomething fixing
heard him cursing, and he could see that the victim
to go down." According to Mr. Sly, the Defendant
was attempting to retrieve something from inside his
walked around to the front of the van, and then the
backpack. The Defendant then pulled out his weapon
victim "pull[ed] the gun up [and] squeeze[d] off two
and warned the victim not to get the gun out of the
shots"; the Defendant went for his pistol and returned
bag. However, according to the Defendant, the victim
fire. When the victim fell to the ground, his father fired
began to run away while trying to get inside the bag,
"four or five" shots at the Defendant, using the
and he fired at the victim "six or seven" times in self-
newspaper stand "for cover[.]" Mr. Sly saw the
defense.
Defendant leave going one way, and the victim's

father leave going another, but only doing so after he
Although the Defendant said L'Amour Sly and
"picked up the gun from the [victim] and picked up the
Tomichael Bennett witnessed these events, Inv.
backpack[.]" Before the victim's father was able to
Halseth confirmed that he never spoke with these
"cut [the Defendant] off[,]" the Defendant got in a car
individuals following the Defendant's interview to
and rode away, according to Mr. Sly.
confirm the Defendant's story. That concluded the

State's proof.
Mr. Sly was asked if the Defendant had "an

opportunity to safely withdraw from the situation[.]" He
The Defendant presented several witnesses in his
replied, "I mean, he could have walked away, but they
defense. First, L'Amour Sly testified that, on June 9,
was in a-- they was pretty much following him to
2012, he was at Walter P. Taylor Homes and stopped
make sure that he didn't go nowhere." Mr. Sly agreed
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that there were many people present in the Walter P.
Bennett saw the victim and his father walking around
Taylor Homes area that day, including kids playing.
Walter P. Taylor Homes looking for the Defendant.
He further agreed that there was a large open area
The victim was wearing a red backpack that appeared
next to the store that the Defendant "could have
heavy, and the bag "hung[, s]o it had to be a gun or
retreated to[,]" although he would have been turning
something in it," according to Mr. Bennett. Mr. Bennett
his back on two armed men. Mr. Sly confirmed that he
saw a "reflection" of a gun inside the victim's father's
had a felony conviction for possession of marijuana
pants pocket.
with intent to sell.

Later at the market, the Defendant was "on a wall by
James Johnson, an inmate in the county jail, testified
the store" when the victim and his father exited. Mr.
that he worked at the Walter P. Taylor Homes' market
Bennett saw the victim walk towards the Defendant,
in June of 2012 but was off on the day of the
and they had a conversation; he saw the victim's
shooting. According to Mr. Johnson, the security
father go the other way towards the newspaper stand.
surveillance system was operational during that time;
The victim then moved towards the front of the van
when the disk covering that day was full, the owner
and started "fumbling with this red little backpack" and
asked him to clear the disk; and before he deleted it,
pulled out what appeared to be a TEC-9. This was the
he watched the footage of the shooting. On that disk,
first time Mr. Bennett had seen the weapon. The
Mr. Johnson saw a man dressed in black standing in
Defendant then shot the victim. Mr. Bennett also
front of the van, and he saw the Defendant and the
observed the victim's father pick up the red backpack
victim talking while standing toward the back of the
and the victim's handgun after the victim had been
van. Mr. Johnson believed that the man in black was
shot. According to Mr. Bennett, other than himself, the
carrying a pistol. According to Mr. Johnson, he saw
victim, the victim's father, the Defendant, and Mr. Sly,
the man in black "running behind the car," and it
no one else was outside of the market at this time.
appeared that they were "trying to ambush" the

Defendant. Mr. Johnson also saw the victim take his
A private investigator hired by the Defendant, Thomas
backpack off and attempt to get something from
Ham, testified that he interviewed the victim on June
inside. He never actually saw the victim with a
22, 2013. According to Mr. Ham, he asked the victim
weapon. Mr. Johnson believed "all the guns were in
about the shooting, and the victim advised,
play" before the victim fell to the ground. According to

Mr. Johnson, the man in black tried to retrieve
'Cause I tried walking up on him and tried to hit
something from under the van, and he then grabbed
him, and he started reaching . . . . I got myself
the victim's backpack and ran from the scene, never
shot. I wasn't even mad at Fat Cat,3 'cause
to return.
anybody knows you see somebody reaching for a

gun, why would you even reach for a gun, and he
Tomichael Bennett, previously convicted of selling a
telling you, 'Don't do it. Don't do it.' Fat Cat telling
counterfeit controlled substance and of felony
you, 'Don't do it.' It's . . . like I said, I'm new to the
possession of a Schedule III controlled substance,
game. That's why I was going . . . .
testified for the Defendant and gave his recollection of

the events. Prior to the events at the market, Mr.
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Mr. Ham then asked the victim why he pulled the gun,
On appeal, the Defendant contends (1) that the trial
to which the victim replied, "Heat of the moment. I
court erred by allowing the State to argue that the
knew he wasn't going to pay me my money anyway."
Defendant was engaged in unlawful activity and was,
The victim also told Mr. Ham that his father was not
therefore, not excused from the duty to retreat under
with him that day and that he did not see him until
a theory of self-defense; (2) that the trial court's
after he got shot. According to the victim, his father
response to a question from the jury during
came to him while he was lying on the ground and
deliberations about a person's duty to retreat when
asked, "You got a gun?" The victim replied, "It's right
engaged in an unlawful activity was in error; and (3)
there," to which his father responded, "I got you now."
that the evidence is insufficient to support his
Mr. Ham confirmed that the victim meant "new to the
convictions. We will address each in turn.
game" of selling drugs in his statement.

I. Duty to Retreat
The State called Rebecca Byers, an evidence
technician with the KPD, in rebuttal. She stated that
First, the Defendant argues that the trial court erred
five spent shell casings were recovered from one
"in permitting the State to offer proof and argue that
general area at the scene and that they were all .40
the Defendant had a duty to retreat before resorting to
caliber Smith and Wesson casings. She also
deadly force in self-defense because at the time, [the]
identified a photograph of the victim at the hospital
Defendant was engaged in . . . unlawful acts."
and, based upon that photograph, testified that the
Essentially, the Defendant contends that his actions
victim had a bullet wound to his back in the upper
were lawful. According to the Defendant, Tennessee
shoulder area.
Code Annotated section 39-17-1322 bars his

prosecution for unlawful possession of a weapon
Following the conclusion of the proof, the jury found
because he employed a handgun in justifiable self-
the Defendant guilty of misdemeanor reckless
defense, and moreover, the drug sale should have
endangerment as a lesser-included offense of
been viewed as completed two days prior to the
attempted first degree murder; not guilty of
shooting and should not have been considered as
employment of a firearm during the commission of
"ongoing" in nature. Therefore, the Defendant
dangerous felony; guilty as charged of unlawful
surmises that the State should not have been
possession of a weapon; and guilty as charged of
permitted to argue that he was engaged in any
aggravated assault. Thereafter, the trial court imposed
"unlawful activity," thus, requiring a duty to retreat
concurrent terms of eleven-months and twenty-nine
under the self-defense statute, Tennessee Code
days for the misdemeanor reckless endangerment
Annotated section 39-11-611(b). The State responds
conviction; two years for the unlawful possession of a
that the trial court properly declined to limit its
weapon conviction4; and five years for the
argument in this regard, appropriately allowing
aggravated assault conviction. This timely appeal
evidence to be presented that the Defendant was
followed.
engaged in unlawful activity, in the form of either a

drug sale or unlawful possession of a weapon, and
ANALYSIS
that the Defendant, therefore, had a duty to retreat

before acting in self-defense.
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(1) Notwithstanding 39-17-1322, a person
Resolving these arguments involves principles of
who is not engaged in unlawful activity and is
statutory construction. "The most basic principle of
in a place where the person has a right to be
statutory construction is to ascertain and give effect to
has no duty to retreat before threatening or
the legislative intent without unduly restricting or
using force against another person when and
expanding a statute's coverage beyond its intended
to the degree the person reasonably believes
scope." Owens v. State, 908 S.W.2d 923, 926 (Tenn.
the force is immediately necessary to protect
1995) (citing State v. Sliger, 846 S.W.2d 262, 263
against the other's use or attempted use of
(Tenn. 1993)). Where the statute's language is clear
unlawful force.
and unambiguous, we derive the legislative intent

from its plain and ordinary meaning. State v. Collins,
(2) Notwithstanding 39-17-1322, a person
166 S.W.3d 721, 726 (Tenn. 2005) (citing State v.
who is not engaged in unlawful activity and is
Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)). If,
in a place where the person has a right to be
however, "the parties derive different interpretations
has no duty to retreat before threatening or
from the statutory language, an ambiguity exists, and
using force intended or likely to cause death
we must look to the entire statutory scheme in
or serious bodily injury, if:
seeking to ascertain legislative intent." Owens, 908

S.W.2d at 926 (citing Lyons v. Rasar, 872 S.W.2d
(A) The person has a reasonable belief
895, 897 (Tenn. 1994)). In ascertaining the intent of
that there is an imminent danger of death
the legislature, courts "'may look to the language of
or serious bodily injury;
the statute, its subject matter, the object and reach of

the statute, the wrong or evil which it seeks to remedy
(B) The danger creating the belief of
or prevent, and the purpose sought to be
imminent death or serious bodily injury is
accomplished in its enactment.'" Collins, 166 S.W.3d
real, or honestly believed to be real at the
at 726 (quoting State v. Gilliland, 22 S.W.3d 266, 275
time; and
(Tenn. 2000)). "Statutes 'in pari materia'--those

relating to the same subject or having a common
(C) The belief of danger is founded upon
purpose--are to be construed together." Owens, 908
reasonable grounds.
S.W.2d at 926 (citing Lyons, 872 S.W.2d at 897).

Furthermore, the rules of statutory construction direct
courts not to "apply a particular interpretation to a
Tenn. Code Ann. 39-11-611(b). The section
statute if that interpretation would yield an absurd
referenced therein, 39-17-1322, provides as a
result." State v. Sims, 45 S.W.3d 1, 11 (Tenn. 2001).
defense to prosecution,
Tennessee's statute on self-defense provides, in

pertinent part, as follows:
A person shall not be charged with or convicted of a

violation under this part if the person possessed,
displayed or employed a handgun in justifiable self-
(b)
defense or in justifiable defense of another during the
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commission of a crime in which that person or the
other person defended was a victim.
along with others that grant legislative immunity for

actions that ordinarily amount to criminal activity,
"evidence the unambiguous legislative intent to
pronounce the Tennessee public policy of
The words "this part" include all of the criminal
encouraging citizens to rescue a person reasonably
violations in part 13 of Tennessee Code Annotated
believed to be in imminent danger of death or serious
chapter 39, title 17, or more specifically, Tennessee
bodily harm, and to protect a citizen who undertakes
Code Annotated sections 39-17-1001 through
such heroic action from negative repercussions."
39-17-1364. "The criminal violations set forth in part

13 of title 39, chapter 17, comprise a diverse group of
offenses involving a wide variety of weapons." State
Id. (quoting Little v. Eastgate of Jackson, LLC, No.
v. Tracey C. Clark, No. M2007-00496-CCA-R3-CD,
W2006-01846-COA-R9-CV, 2007 Tenn. App. LEXIS
2008 Tenn. Crim. App. LEXIS 355, 2008 WL 1699425,
242, 2007 WL 1202431, at *9 (Tenn. Ct. App. Apr. 24,
at *6 (Tenn. Crim. App. Apr. 10, 2008) (Woodall,
2007)). The court continued,
concurring).
If the legislature had intended actions
In State v. Tracey Clark, the defendant made a similar
performed in "self-defense" to operate as an
argument as presented herein, and the trial court
absolute bar to prosecution, then it would have
granted the defendant's motion to dismiss the
been unnecessary to include the language that
indictment for possession of a weapon on school
prohibits conviction in the statute. In other words,
grounds, concluding that the defendant had
if the statute barred indictment, there would be no
established to the court that he was acting in
reason to address a conviction under Tennessee
justifiable self-defense and that, therefore, section
Code Annotated section 39-17-1322, as there can
39-17-1322 barred his prosecution. 2008 Tenn. Crim.
be no prosecution without a valid indictment.
App. LEXIS 355, 2008 WL 1699425, at *1-2. This

court reversed on appeal, rejecting the defendant's
Id. (citing Dykes v. Compton, 978 S.W.2d 528, 529-30
assertion that section 39-17-1322 "operates as a
(Tenn. 1998)).
complete bar to indictment and prosecution for

actions that are performed in 'self- defense.'" 2008
The court in Clark then determined that the trial court
Tenn. Crim. App. LEXIS 355, [WL] at *3. In so holding,
improperly took the role of fact-finder and usurped the
the court reasoned that the "justifiable self-defense"
role of the jury when it dismissed the indictment for
language of section 39-17-1322 served "as a directive
possession of a weapon on school grounds,
to law enforcement and district attorneys that should
concluding from the facts that the defendant acted in
they determine, based upon their investigation and
justifiable self-defense. 2008 Tenn. Crim. App. LEXIS
using their discretion, that a person acted in justifiable
355, 2008 WL 1699425, at *5. In reaching its
self-defense, they shall not seek to indict that
conclusion, this court explained,
individual." Id. This section,

[B]y dismissing the indictment, the trial court
found that the facts of the case would not support
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a conviction for possession of a weapon on
we were to permit the State to argue that a felon in
school grounds because [the defendant] was the
possession of a weapon asserting self-defense,
victim of an assault and displayed his handgun in
without more, could satisfy the definition of "unlawful
self-defense. This amounts, in our view, to a
activity," such an interpretation would nullify the
determination of facts that were "intertwined with
defense set forth in section 39-17-1322, leading to an
the factual evidence of the defendant's conduct at
absurd result. Accordingly, the State should not have
the time of the alleged offense." [State v.]
been permitted to argue that the Defendant's conduct,
Goodman, 90 S.W.3d [557,] 562 [(Tenn. 2002)].
a convicted felon for a drug offense arming himself
The trial court's actions amounted to a grant of
with a weapon prior to the shooting, standing alone,
summary judgment for [the defendant], which
could have formed the basis for the jury to conclude
does not exist in criminal cases. See [State v.]
that the Defendant was engaged in "unlawful activity"
Burrow, 769 S.W.2d [510,] 514 [(Tenn. Crim. App.
for the purposes of the self-defense statute requiring
1989)]. In our view, the facts asserted in the
a duty to retreat.
motion and at the evidentiary hearing could only

rationally bear upon the issue of guilt or
The Defendant also submits that he was not engaged
innocence; therefore, they were improper for
in the "unlawful activity" of selling drugs at the time of
consideration on the motion to dismiss.
the shooting. He reasons that the sale had been
Furthermore, the issue of self-defense is a matter
"completed two days prior when the contraband
for the jury to decide. State v. Ivy, 868 S.W.2d
became the property of the buyer." Accordingly, the
724, 727 (Tenn. Crim. App. 1993).
State should not have been allowed to present such

an argument to the jury, in his opinion. We decline to
Id.
adopt the assertion put forward by the Defendant

because, here, we are dealing with the exchange of
The Defendant argues that "[i]f conduct cannot, by
illegal narcotics, not a transfer of commercial goods.
direct prohibition, be the basis for a charge or
We agree with the trial court that this issue of whether
conviction, how can it logically be considered the
the Defendant was still engaged in a drug deal was
basis of a determination that the felon who has armed
factually driven. The Defendant by his own admission
himself in self-defense is engaged in 'unlawful
was the middleman between the victim and a third
activity?'" In accordance with the rationale espoused
party seller. When the victim became displeased with
by this court in Clark, we agree that section
the product shortly after the sale, he and his father
39-17-1322 does not bar a charge or conviction for
returned to the seller's house to retrieve the victim's
the Defendant's conduct in this case, and any issue in
money--whether the Defendant was forced by the
that regard, i.e., whether he was acting in justifiable
victim to return to the seller's house with them was a
self-defense, was a proper question for the jury.
factual issue to be considered by the jury. They were
However, the issue of whether one was engaged in
unsuccessful at the seller's house, and when the
justifiable self-defense while unlawfully possessing a
Defendant heard the victim was looking for him, he
weapon does not equate to the issue of whether one
sought out the victim while armed. According to the
was engaged in "unlawful activity" for the purposes of
Defendant, he did so to negotiate a satisfactory
the self-defense statute requiring a duty to retreat. If
outcome; however, when negotiations broke down,
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2015 #23 (May 25-29, 2015)
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shots were fired. The Defendant was asking the trial
offenses, i.e., dealing drugs and all of his attendant
court to make factual determinations reserved for the
conduct surrounding that transaction, and in light of
jury.
the jury's decision to find the Defendant guilty of

unlawful possession of a weapon with proper
The term "unlawful activity" as used in section
instructions, any error in permitting the State's
39-11-611(b) is not defined. Regardless, "[w]here
argument was certainly harmless. The Defendant is
words and terms are in common use and are such as
not entitled to relief.
can be understood by persons of ordinary

intelligence, it is not necessary, in the absence of
II. Jury Instructions
anything in the charge to obscure their meaning, for

the court to define or explain them." See State v.
The Defendant next contends that the trial court erred
Summers, 692 S.W.2d 439, 445 (Tenn. Crim. App.
by failing to answer a question posed by the jury
1985). We note that the parties seemingly argue both
during its deliberations and instead simply referring
of these theories, unlawful possession of a weapon
them again to the pattern jury instruction on self-
and selling drugs, in a vacuum as to whether they
defense. The State responds that the trial court's
qualify as "unlawful activity" for purposes of the self-
response was proper.
defense statue. However, we feel constrained to note

that the jury was entitled to consider all of the facts
At trial, the court instructed the jury on self-defense as
and circumstances leading up to the Defendant's
follows:
conduct in determining whether the Defendant's use

of force in defending himself was reasonable,
Included in the defendant's plea of not guilty is his
including whether he was engaged in "unlawful
plea of self-defense.
activity" at the time. See T.P.I. Crim. -- 40.06(b)(2).

If a defendant was not engaged in unlawful
Although we conclude that the trial court erred in
activity and was in a place where he or she had a
allowing the State's argument regarding unlawful
right to be, he or she would have no duty to
possession of a weapon alone satisfied the definition
retreat before threatening or using force against
of "unlawful activity," the jury in this case was charged
the alleged victim when and to the degree the
that justifiable self-defense was a defense to the
defendant reasonably believed the force was
possession charge. Moreover, the jury was properly
immediately necessary to protect against the
allowed to consider all of the Defendant's conduct
alleged victim's use of unlawful force.
leading up to the shooting in determining whether he

was engaged in "unlawful activity" and, therefore, had
If a defendant was not engaged in unlawful
a duty to retreat under section 39-11-611(b). Indeed,
activity and was in a place where he or she had a
the question of whether the Defendant's actions were
right to be, he or she would also have no duty to
unlawful at the time of the shooting was a question for
retreat before threatening or using force intended
the jury in their role as fact-finders. Given the
or likely to cause death or serious bodily injury if
overwhelming evidence that the Defendant was
the defendant had a reasonable belief that there
engaged in "unlawful activity" at the time of the
was an imminent danger of death or serious
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bodily injury, the danger creating the belief of
If from all the facts and circumstances you find
imminent death or serious bodily injury was real,
the defendant acted in self-defense, or if you
or honestly believed to be real at the time, and
have a reasonable doubt as to whether the
the belief of danger was founded upon
defendant acted in self-defense, you must find
reasonable grounds.
him not guilty.
In determining whether the defendant's use of
See T.P.I. Crim. -- 40.06(b)(2).
force in defending himself was reasonable, you

may consider not only his use of force but also all
During deliberations, the jury presented a question to
the facts and circumstances surrounding and
the trial court regarding the instructions on self-
leading up to it. Factors to consider in deciding
defense. The question reads: "Does unlawful act
whether there were reasonable grounds for the
preclude act of self-defense as a defense plea?" The
defendant to fear death or serious bodily injury
trial court then discussed with the parties the proper
from the alleged victim include but are not limited
response. Defense counsel asked the court to provide
to any previous threats of the alleged victim made
a supplemental instruction stating that "unlawful act"
known to the defendant; the character of the
only goes to the question of whether the Defendant
alleged victim for violence, when known to the
had a duty to retreat and additionally instruct that the
defendant; the animosity of the alleged victim for
Defendant has no duty to retreat if he cannot do so
the defendant, as revealed to the defendant by
safely. The State requested that the trial court just
previous acts and words of the alleged victim; and
"reread" the instruction on self-defense. The trial court
the manner in which the parties were armed and
then responded to the jury's inquiry as follows: "Dear
their relative strengths and sizes.
Jurors, I will refer you back to the instructions,

specifically page 16, which explains the law of self-
"Force" means compulsion by the use of physical
defense." This was the "safest and most accurate
power or violence.
response" in the trial court's opinion because to do

otherwise may have "run the danger of improperly
"Violence" means evidence of physical force
influencing their verdict."
unlawfully exercised so as to damage, injure or

abuse. Physical contact is not required to prove
Under Tennessee law, a trial court has a duty to
violence. Unlawfully pointing a deadly weapon at
provide "a complete charge of the law applicable to
an alleged victim is physical force directed toward
the facts of the case." State v. James, 315 S.W.3d
the body of the victim. "Imminent" means near at
440, 446 (Tenn. 2010) (quoting State v. Harbison, 704
hand; on the point of happening.
S.W.2d 314, 319 (Tenn. 1986)); see also Tenn. R.

Crim. P. 30(d)(2). A charge "should not contain
If evidence is introduced supporting self-defense,
inaccurate or inapplicable statements of legal
the burden is on the state to prove beyond a
principles that might tend to confuse the jury." State v.
reasonable doubt that the defendant did not act in
Hatcher, 310 S.W.3d 788, 812 (Tenn. 2010) (citations
self-defense.
omitted). Tennessee law, however, does not mandate

that any particular jury instructions be given so long
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2015 #23 (May 25-29, 2015)
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as the trial court gives a complete charge on the
law" constituted reversible error). However. on
applicable law. See State v. West, 844 S.W.2d 144,
appeal. the Defendant does not argue that the jury
151 (Tenn. 1992). A charge is prejudicial error "if it
instruction on self-defense was erroneous. Instead.
fails to fairly submit the legal issues or if it misleads
the Defendant argues that "[a] certain way to assure
the jury as to the applicable law." State v. Hodges,
that the jury understood that 'unlawful activity' is only
944 S.W.2d 346, 352 (Tenn. 1997) (citing State v.
a consideration as to a duty to retreat is to tell them
Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.
so directly and answer the question directly."
1995); Graham v. State, 547 S.W.2d 531 (Tenn.
According to the Defendant. the trial court's response
1977)). As a mixed question of law and fact, our
did not address the jury's misunderstanding. The
standard of review for questions concerning the
Defendant also requested that the trial court clarify for
propriety of jury instructions is de novo with no
the jury that there is no duty to retreat if such cannot
presumption of correctness. State v. Smiley, 38 S.W.
be accomplished safely.
3d 521, 524 (Tenn. 2001).

"Under the 'true man' doctrine, one need not retreat
Trial courts have "the authority to respond to jury
from the threatened attack of another even though
questions with a supplemental instruction." Forbes,
one may safely do so. Neither must one pause and
918 S.W.2d at 451. However, the Defendant has not
consider whether a reasonable person might think it
cited to any authority which states that a trial court is
possible to safely flee rather than to attack and
obligated to answer the jury's questions during
disable or kill the assailant." State v. Renner, 912
deliberations or give a supplemental instruction in
S.W.2d 701. 704 (Tenn. 1995). Tennessee's law of
light of the jury's question. See, e.g., State v. Jim
self-defense in the use of deadly force. Tennessee
Gerhardt, No. W2006-02589-CCA-R3-CD, 2009 Tenn.
Code Annotated section 39-11-611(b). adheres to the
Crim. App. LEXIS 523, 2009 WL 160930, at *13
true man doctrine. The statute also requires that one
(Tenn. Crim. App. Jan. 23, 2009) (finding that no clear
be in a place where he has a right to be and not be
or unequivocal rule of law had been breached when
engaged in any unlawful activity before there is no
the trial court simply referred the jury back to the
duty to retreat. See State v. Hawkins, 406 S.W.3d
initial charge in response to the jury's note: "Please
121. 128 (Tenn. 2013) ("To prevail on a theory of self-
define a criminal intent attempt of child abuse and
defense, a defendant must show that he or she was
neglect. Does it matter if he (defendant) knew what
'not engaged in unlawful activity' and was 'in a place
he did would cause harm?"; and the word "intent" was
where the person has a right to be.'"); State v.
struck through). We are aware that this court has
Zachary Carlisle, No. W2012-00291-CCA-MR3-CD.
previously reversed a defendant's conviction for
2013 Tenn. Crim. App. LEXIS 878, 2013 WL 5561480
failure to issue a supplemental instruction in light of
at *18-19 (Tenn. Crim. App. Oct. 7, 2013) (concluding
an erroneous jury instruction. See. e.g., State v.
that the defendant was not entitled to a self-defense
Robinson, 239 S.W.3d 211. 226-28 (Tenn. Crim. App.
instruction because he was engaged in illegal activity.
2006) (trial court's failure to answer jury question and
i.e., a drug deal with the victim at the time of the
issue supplemental instruction regarding inability of
murder, and because no evidence in the record
accomplices to corroborate each other where initial
suggested the victim threatened the defendant with a
jury instruction did not inform jury of this "well-settled
deadly weapon or force). As discussed in the section
__________________________________________________________________________________________
Page 21 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
above. the State was properly allowed to argue, and
choose not to issue a supplemental instruction for
the jury was correctly allowed to consider, that the
fear such instruction would be "unduly emphatic upon
Defendant was engaged in unlawful activity and.
certain portions of the law to the exclusion of other
therefore. had a duty to retreat pursuant to the self-
parts equally applicable to the area of jury
defense statute.
misunderstanding or confusion." The trial court also

noted that the instruction on self-defense was an
The trial court's instruction on self-defense was a
accurate statement of the law and that the defense
proper statement of the law. The instruction tracks the
was permitted to argue to the jury "that someone
language of the relevant statute, see Tennessee
shouldn't have to retreat if they can't do so safely." We
Code Annotated section 39-11-611(b), and it follows
find no error in this regard.
the pattern jury instruction, as provided in the

Tennessee Pattern Jury Instructions. Additionally,
We conclude that the trial court's jury instruction on
when a court chooses to repeat instructions or give
self-defense fairly submitted the legal issues,
supplemental instructions, the instructions must be:
including that one only has a duty to retreat if

engaged in unlawful activity, and did not mislead the
(1) appropriately indicated by questions or
jury as to the applicable law. As such, the trial court's
statements from jurors, or from the circumstances
referring the jury to its charge without giving an
surrounding the deliberative and decisional
additional instruction was an appropriate response.
process, (2) comprehensively fair to all parties,
The Defendant is therefore denied relief on this issue.
and (3) not unduly emphatic upon certain portions

of the law to the exclusion of other parts equally
[...]
applicable to the area of jury misunderstanding or

confusion.
CONCLUSION
Berry v. Conover, 673 S.W.2d 541, 545 (Tenn. Ct.
Based upon the foregoing reasoning and authorities,
App. 1984). The trial court's ruling indicates that it
we affirm the judgments of the trial court.
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 22 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
UTAH
State v. Alzaga, 2015 UT App 133 (UT Ct. App. 2015)
Key issues:
Impermissible to claim of self-defense by person attempting/committing/fleeing a felony [Utah

Code 76-2-402(2)(a)(ii)]; Burden of persuasion on self-defense is on the State; "Forcible felony"
includes "arson, robbery, and burglary as defined in Title 76, Chapter 6 [of the Utah Code],
Offenses Against Property," as well as "[a]ny other felony offense which involves the use of force
or violence against a person so as to create a substantial danger of death or serious bodily
injury." [Utah Code Ann. 76-2-402(4)(a), (b)]
Date:
May 29, 2015
Decision:
marijuana. Hannah and Mark agreed to meet the
Cristian A. Alzaga was convicted of murder,
customer for the sale at a spot where they had met
aggravated assault, and aggravated robbery. All the
before, on a footbridge by the Jordan River near 3900
crimes occurred in connection with a drug deal under
South (the Footbridge). When Mark and Hannah
a bridge on the Jordan Parkway. The State claimed
arrived for the sale, they crossed the Footbridge and
that the victims were at the bridge to sell marijuana;
spotted the customer. With him was "a bigger guy"
Alzaga claimed they were there to buy heroin. On
who acted as a lookout. Mark also spotted a third
appeal Alzaga challenges certain of the trial court's
man talking on a cell phone and pacing back and
evidentiary rulings, its instructions to the jury on self-
forth on a larger bridge spanning the Jordan River
defense, and its denial of his motion for a new trial.
nearby (the Jordan River Bridge). Mark described this
He also contends that his trial counsel rendered
third man, the defendant, as having spiked black hair,
constitutionally ineffective assistance. We affirm.
"kind of crown shaped," and wearing a white shirt.

Mark did not immediately connect Alzaga with the
BACKGROUND1
customer and the lookout. However, Mark felt

concerned that the lookout had accompanied the
The Drug Deal
customer to the drug deal; Mark and the customer

"had kind of an agreement that you didn't bring
Hannah and her boyfriend, Mark,2 lived together in a
anybody with you when you came to buy marijuana,"
tent near the Jordan River Parkway Trail in Midvale,
because "anything could happen when you meet new
Utah. The two scraped by; each sold marijuana, while
people." But Hannah felt comfortable because she
Mark received food stamps and donated his blood
had known the customer for "[p]retty much her entire
plasma.
life."
In May 2010, one of the couple's regular customers
Mark and Hannah decided to go ahead with the deal.
contacted Hannah to purchase an ounce of

The customer asked Mark and Hannah to weigh the
__________________________________________________________________________________________
Page 23 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
marijuana, and Hannah climbed down onto a ledge
could not breathe. Mark then relinquished the purse
under the Footbridge to do so. The customer stood
to help Hannah, and Alzaga took off running. Hannah
against a post above Hannah, and the lookout made
threw away the marijuana she had in her pocket and
"sure that nobody was coming while [Hannah]
lay down on the ground, struggling to breathe. Mark
weighed the marijuana." Alzaga approached, still
grabbed Hannah's phone and dialed 911. Hannah,
talking on his cell phone. When he and the customer
eighteen years old, died at the hospital of a stab
argued briefly, Alzaga pulled what appeared to be a
wound to the abdomen.
gun and pointed it at the customer. The customer

looked under the Footbridge at Hannah; Alzaga then
Alzaga's Version of Events
pointed the gun at her and said, "You give me all your
shit."
Alzaga described quite a different encounter. He

maintained that he did not kill Hannah and that he
The Stabbings
stabbed Mark in self-defense. Alzaga testified that he,

the customer, and the lookout agreed to meet Mark
Hannah backed up under the Footbridge. Alzaga
and Hannah at the Footbridge to sell them a large
jumped down after her, and Mark followed. Mark saw
amount--fifty-two grams--of heroin. The three drove
that Alzaga and Hannah "were kind of close together"
together to the Jordan River Parkway Trail, walked to
and saw Hannah jump back from Alzaga "like she
the Footbridge, and after meeting up with Mark and
was trying to get away from something." Mark then
Hannah, Alzaga weighed a plastic-wrapped package
grabbed Alzaga by the shoulder from behind. Alzaga
of heroin the size of a tennis ball and worth $6,000.
wheeled around, pointed the gun at Mark, and said,
After Alzaga confirmed its weight, he claimed that
"You can give me all your shit, too." Mark thought that
Mark suddenly "just grab[bed] the ball of heroin" and
the gun looked fake and batted it away from Alzaga.3
handed it to Hannah, who "start[ed] running."
But Alzaga also had a knife. Alzaga slashed at Mark,

who jumped back and yelled at Hannah to run.
Alzaga then testified that Mark began punching him
Hannah walked slowly up the hill and said that she
on the left side of his face and neck. As Mark
had been stabbed. Both Alzaga and Mark ran toward
assaulted him, Alzaga observed the customer running
Hannah. Mark then heard the customer yell, "Forget
across the Footbridge and "noticed [the lookout]
it. It's done. Let's go. Let's go. Let's go." The customer
chasing after [Hannah]." Alzaga told the jury that he
and the lookout fled the scene toward 3900 South.
was "high on [e]cstasy" and "just felt terrified" by

Mark's assault. Alzaga absorbed Mark's punches for a
Alzaga reached Hannah before Mark did and began
time but then started to fall over, and "that's when"
pulling at her purse. Mark caught up to Hannah and
Alzaga "felt the knife" in his pocket. Alzaga then
Alzaga and stepped between them to shield Hannah
pulled the knife out of his pocket, and as Mark
from Alzaga. Mark told Hannah to let go of the purse.
punched him, he "countered back with a right hook"
As Mark and Alzaga "struggled over the purse"
and slashed Mark in the eye. Mark backed away
Alzaga slashed at Mark and struck him in the eye.
while the lookout returned with Hannah's purse in
Alzaga had wounded both Mark and Hannah; Mark's
hand. The lookout gave the purse to Alzaga, and both
eye was swollen shut, and Hannah told Mark that she
fled the scene.
__________________________________________________________________________________________
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2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
question of self-defense creates a reasonable
Alzaga was convicted of murder, a first-degree felony,
doubt in your mind whether he is guilty of
Utah Code Ann. 76-5-203(3) (LexisNexis Supp.
Aggravated Assault . . . , you are to find him not
2010); aggravated robbery, a first-degree felony, id.
guilty of that count. If the evidence of self-defense
76-6-302 (LexisNexis 2008); and aggravated assault,
creates a reasonable doubt in your mind about
a second-degree felony, id. 76-5-103. He appeals.
his guilt, he is entitled to an acquittal on [the

Aggravated Assault count].
ISSUES
Defense counsel approved this instruction.
[...]
The court orally supplemented the initial instruction by
Fifth, Alzaga contends that the trial court erroneously
telling the jury that "distribution of a controlled
instructed the jury on the standard for self-defense.
substance, heroin, is a felony." Defense counsel

objected to the supplemental instruction at sidebar
[...]
but stated no legal basis for the objection on the

record. After closing arguments, and after the jury
ANALYSIS
began deliberations, counsel stated on the record a

rationale for her objection: the supplemental
[...]
instruction allowed the jury to find that Alzaga

committed a felony offense--distribution of heroin--
V. Self-Defense Jury Instructions
without first finding the elements of that offense

beyond a reasonable doubt. The prosecutor
Alzaga contends that the trial court instructed the jury
countered that the instruction was a correct statement
erroneously on self-defense relating to the
of the law and that Alzaga had testified to distributing
aggravated assault against Mark. The trial court
heroin. The trial court overruled the objection.
instructed the jury that a person may use force

reasonably necessary to defend against another's
Alzaga challenges the jury instructions on four
imminent use of unlawful force. The court then
grounds. First, he argues that the oral instruction
explained that a person may not lawfully use
violated his right to self-defense under Article I,
defensive force when "attempting to commit,
section 1 of the Utah Constitution. "All men," that
committing, or fleeing after the commission, or the
provision declares, "have the inherent and inalienable
attempted commission of a felony." The court also
right to enjoy and defend their lives and liberties . . . ."
instructed the jury that Alzaga did not have to prove
Utah Const. art. 1, 1. Alzaga contends that the
self-defense but that if any evidence created a
court's oral instruction abridged his right to defend his
reasonable doubt as to his guilt, the jury should
life in two respects. First, it precluded self-defense
acquit:
even if the felony he was committing at the time of the

aggravated assault--distribution of heroin--was
Defendant does not have to prove he acted in

self-defense but if any evidence shown on the
nonviolent. Second, the instruction drew no causal

connection between the distribution of heroin and the
__________________________________________________________________________________________
Page 25 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
victim's use of force. The State responds that Alzaga
felony. A "forcible felony" includes "arson, robbery,
did not preserve his constitutional claim, and in that
and burglary as defined in Title 76, Chapter 6 [of the
any event, any error was harmless.
Utah Code], Offenses Against Property," as well as

"[a]ny other felony offense which involves the use of
Under Utah's self-defense statute, a person is justified
force or violence against a person so as to create a
in using lethal force "only if the person reasonably
substantial danger of death or serious bodily injury."
believes that force is necessary to prevent death or
Utah Code Ann. 76-2-402(4)(a), (b). Title 76,
serious bodily injury to the person or a third person as
Chapter 6 includes the crime of aggravated robbery.
a result of another person's imminent use of unlawful
The jury convicted Alzaga of aggravated robbery, and
force, or to prevent the commission of a forcible
he does not argue on appeal that the facts presented
felony." Utah Code Ann. 76-2-402(1)(b) (LexisNexis
at trial were insufficient to support that conviction. We
Supp. 2010). But a person "is not justified" in using
have previously held that a defendant who kills
any defensive force "if the person is attempting to
another while committing an aggravated robbery
commit, committing, or fleeing after the commission
cannot avail himself of the self-defense statute. State
or attempted commission of a felony." Id.
v. Soules, 2012 UT App 238, 4, 286 P.3d 25.6 Thus,
76-2-402(2)(a)(ii).
Alzaga's first self-defense claim fails under any

applicable standard of review.
Alzaga does not dispute that he was dealing heroin at

the time of the aggravated assault. Nor does he
Second, Alzaga argues that instructing the jury that
dispute that dealing heroin qualifies as a felony.
distribution of heroin is a felony allowed the jury to
Rather, he argues that it is not a forcible felony and
find him ineligible for self-defense without first
that only attempting to commit, committing, or fleeing
requiring the jury to find all of the elements of heroin
after committing forcible felonies should bar a
distribution, an uncharged offense, beyond a
defendant from invoking self-defense. He
reasonable doubt. The trial court orally instructed the
acknowledges that the statutory text does not contain
jury, "I'm instructing you further that distribution of a
this limitation but argues that failure to read "felony"
controlled substance, heroin, is a felony." The State
as "forcible felony" produces absurd results. Cf. In re
responds that Alzaga did not timely preserve this
Z.C., 2007 UT 54, 11, 165 P.3d 1206 ("[A] court
claim and that he fails to assert any exception to the
should not follow the literal language of a statute if its
preservation rule on appeal. And even if Alzaga timely
plain meaning works an absurd result." (citation and
preserved his claim, the State argues, any error was
internal quotation marks omitted)). "If the statute were
harmless.
read literally," Alzaga reasons, "a man guilty of theft of

utility services could not defend himself in his own
This claim fails for the same reason that Alzaga's first
home."
challenge to the instruction failed: any possible error

was harmless. "Any error, defect, irregularity or
We agree with the State that any possible error in the
variance which does not affect the substantial rights
oral jury instruction was harmless. See Utah R. Crim.
of a party shall be disregarded." Utah R. Crim. P.
P. 30(a). Any possible error here was harmless
30(a). As explained above, because Alzaga
because the jury found Alzaga guilty of a forcible
committed a forcible felony--aggravated robbery--he
__________________________________________________________________________________________
Page 26 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
was "not justified in using force" against Mark. See
omitted). Therefore, any ambiguities or deficiencies in
Utah Code Ann. 76-2-402(2)(a). Accordingly, any
the appellate record "simply will be construed in favor
error in instructing the jury that distribution of heroin is
of a finding that counsel performed effectively." State
a felony was harmless.
v. Litherland, 2000 UT 76, 17, 12 P.3d 92. "[P]roof of

ineffective assistance of counsel cannot be a
Third, Alzaga argues that the court's written self-
speculative matter but must be a demonstrable
defense instruction did not adequately convey the
reality." Allen v. Friel, 2008 UT 56, 21, 194 P.3d 903
State's burden to disprove self-defense beyond a
(alteration in original) (citation and internal quotation
reasonable doubt. He argues that counsel performed
marks omitted).
ineffectively for failing to correct this error. The State

responds that Alzaga has inadequately briefed this
The trial court's instruction explained that Alzaga had
claim and that he has therefore not satisfied his
no burden to prove self-defense and that the
burden of persuasion on his ineffective-assistance-of-
existence of reasonable doubt concerning whether he
counsel claim. "In determining a claim of ineffective
acted in self-defense required acquittal:
assistance of counsel raised for the first time on

appeal, we must decide whether [the] defendant was
Defendant does not have to prove he acted in
deprived of the effective assistance of counsel as a
self-defense but if any evidence shown on the
matter of law." State v. Aguirre-Juarez, 2014 UT App
question of self-defense creates a reasonable
212, 6, 335 P.3d 896 (alteration in original) (citation
doubt in your mind whether he is guilty of
and internal quotation marks omitted); see also State
Aggravated Assault . . . , you are to find him not
v. Clark, 2004 UT 25, 6, 89 P.3d 162.
guilty of that count. If the evidence of self-defense

creates a reasonable doubt in your mind about
To succeed on an ineffective-assistance-of-counsel
his guilt, he is entitled to an acquittal on [the
claim, an appellant must show that (1) "counsel's
Aggravated Assault count].
performance was deficient in that it 'fell below an

objective standard of reasonableness'" and (2)
Alzaga complains on appeal that this instruction does
"counsel's performance was prejudicial in that 'there
not state explicitly that the State bore the burden of
is a reasonable probability that but for counsel's
disproving self-defense beyond a reasonable doubt.
unprofessional errors, the result of the proceeding

would have been different.'" Menzies v. Galetka, 2006
"[T]he failure of counsel to make motions or
UT 81, 87, 150 P.3d 480 (quoting Strickland v.
objections which would be futile if raised does not
Washington, 466 U.S. 668, 688, 694 (1984)). An
constitute ineffective assistance." Codianna v.
appellant must rebut "a strong presumption that
Morris, 660 P.2d 1101, 1109 (Utah 1983) (citation
counsel's conduct falls within the wide range of
and internal quotation marks omitted). Here, a
reasonable professional assistance; that is, the
trial objection would have been futile because the
defendant must overcome the presumption that,
jury instructions adequately instructed the jury on
under the circumstances, the challenged action might
the burden of proof.
be considered sound trial strategy." Strickland, 466

U.S. at 689 (citation and internal quotation marks
__________________________________________________________________________________________
Page 27 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
Our supreme court's decision in State v. Knoll
because the instruction correctly allocated the burden
supports this conclusion. 712 P.2d 211 (Utah
of proof under controlling precedent, counsel did not
1985). In Knoll, the trial court approved an
perform deficiently in not objecting to it.
instruction that did not state explicitly that the

State retained the burden of disproving self-
Finally, Alzaga argues that the verdict form did not
defense beyond a reasonable doubt:
identify the State's burden of proving aggravated

assault, and disproving self-defense, beyond a
[I]f upon the whole of the evidence, including
reasonable doubt. Because this claim is unpreserved,
that produced by the defendant, . . . or otherwise
he argues that the trial court plainly erred and that his
shown in evidence, the jury entertains a
trial counsel ineffectively failed to correct this error.
reasonable doubt as to the defendant's guilt of
The State responds that Alzaga has inadequately
any element necessary to constitute the charged
briefed his claim and thus has not met his burden of
[offense] or one included therein, the defendant is
persuasion on appeal.
entitled to an acquittal.
"We review the jury instructions, including the jury
Id. at 215. The court held that even though "the trial
verdict forms, for correctness." State v. Johnson,
court did not give an instruction that stated that the
2014 UT App 161, 11, 330 P.3d 743, cert. granted,
prosecution had to prove the absence of self-defense
343 P.3d 708 (Utah 2015); cf. State v. Houskeeper,
beyond a reasonable doubt," the instruction
2002 UT 118, 11, 62 P.3d 444. To demonstrate plain
nevertheless "constituted a correct statement of the
error, a defendant must establish that (1) an error
law." Id. The instruction clearly conveyed that the jury
exists, (2) the error should have been obvious to the
should consider any evidence of self-defense, that the
trial court, and (3) the error was harmful; that is,
burden of proof remained with the State at all stages
"absent the error, there is a reasonable likelihood of a
of the trial, and that "if the jury entertained a
more favorable outcome for the appellant, or phrased
reasonable doubt about whether defendant acted in
differently, our confidence in the verdict is
self-defense, it should acquit." Id.
undermined." State v. Dunn, 850 P.2d 1201, 1208-09

(Utah 1993). "In determining a claim of ineffective
Here, as in Knoll, even though the instruction did not
assistance of counsel raised for the first time on
expressly state that the prosecution had to prove the
appeal, we must decide whether [the] defendant was
absence of self-defense beyond a reasonable doubt,
deprived of the effective assistance of counsel as a
it made clear that the jury must consider the defense,
matter of law." State v. Aguirre-Juarez, 2014 UT App
that the burden of proof remained with the State, and
212, 6, 335 P.3d 896 (alteration in original) (citation
that Alzaga did "not have to prove he acted in self-
and internal quotation marks omitted); see also State
defense." And in stating that "if any evidence shown
v. Clark, 2004 UT 25, 6, 89 P.3d 162.
on the question of self-defense creates a reasonable

doubt in your mind" Alzaga was "entitled to an
"[F]ailure to adequately instruct the jury 'concerning
acquittal," the instruction correctly conveyed that the
the burden of proof as to self-defense,' is reversible
State retained the burden of proof of disproving self-
error and requires a new trial." State v. Garcia, 2001
defense beyond a reasonable doubt. Accordingly,
UT App 19, 18, 18 P.3d 1123 (quoting State v.
__________________________________________________________________________________________
Page 28 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
Torres, 619 P.2d 694, 696 (Utah 1980)). "The duty to
properly instruct the jury applies to the verdict form."
YES
State v. Campos, 2013 UT App 213, 42, 309 P.3d
NO
1160. "[W]hen reviewing an alleged error in the jury

instructions, 'we look at the jury instructions in their
Alzaga cites State v. Campos in support of his
entirety.'" Id. 64 (quoting State v. Maestas, 2012 UT
contention that the trial court plainly erred in
46, 148, 299 P.3d 892). "[I]f taken as a whole the[]
approving the instruction and that counsel
[jury instructions] fairly instruct the jury on the law
ineffectively failed to correct the error. 2013 UT App
applicable to the case, the fact that one of the
213, 309 P.3d 1160. In Campos, we held that the
instructions, standing alone, is not as accurate as it
verdict form at issue affirmatively, but erroneously,
might have been is not reversible error." Id. (first
instructed the jury on the burden of proof for self-
alteration in original) (citation and internal quotation
defense. Id. 43. The instructions stated that if the
marks omitted).
jury found Campos guilty of attempted murder with

resulting injury, they should then decide whether
Here, the verdict form read in isolation did not explain
"beyond a reasonable doubt, . . . the defense of
the State's burden of disproving self-defense beyond
Imperfect Self Defense applies in this case." Id. 39.
a reasonable doubt:
We explained that "[t]he fundamental problem with

the verdict form" was "that it require[d] an affirmative
We, the jury . . . unanimously find the
defense to be established beyond a reasonable
defendant . . . [a]s to Count 3, AGGRAVATED
doubt." Id. 41. But under Utah law, "[a] defendant
ASSAULT:
need only produce enough evidence to raise a

reasonable basis for the affirmative defense." Id.
NOT GUILTY
"Once that initial showing is made, the burden shifts
GUILTY
to the [S]tate to prove to the jury, beyond a

reasonable doubt, that the defense lacks merit." Id.
If you find the defendant Guilty, by finding he
(citation and internal quotation marks omitted).
committed the assault . . . answer these

questions:
Here, unlike in Campos, the verdict form did not
Did the State prove beyond a reasonable doubt
convey that an affirmative defense requires the
that defendant intentionally inflicted serious bodily
defendant to prove self-defense beyond a reasonable
injury on [Mark]? If YES, stop and sign the verdict
doubt. Indeed, the verdict form did not address the
form. If NO, answer the next question.
burden of proof with respect to self-defense at all.

But, as explained above, the jury instructions
YES
elsewhere adequately conveyed the State's burden
NO
with respect to Alzaga's claim of self-defense. The

verdict form instructed the jury to decide "yes" or "no"
Did the State prove beyond a reasonable doubt
only as to whether "the State proved beyond a
that defendant assaulted [Mark] and used a
reasonable doubt" that Alzaga committed aggravated
dangerous weapon:
assault with a dangerous weapon. That statement
__________________________________________________________________________________________
Page 29 of 30

2015 #23 (May 25-29, 2015)
__________________________________________________________________________________________
incorporates the State's burden of proof pertaining to
[...]
self-defense because the jury could have found

Alzaga guilty beyond a reasonable doubt only after
CONCLUSION
concluding that his evidence of self-defense did not

create a reasonable doubt as to this guilt.
In sum, Alzaga has failed to carry the burden of

persuasion on the claims he has raised on appeal.
Accordingly, the trial court did not plainly err in
We therefore affirm his convictions.
approving the verdict form, nor did counsel perform

ineffectively by not objecting to it.
[...]
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 30 of 30

2015 #23 Self Defense Weekly Law Report

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Law of Self Defense: Weekly Law Report

2015 #23 (May 25-29, 2015)

Law of Self Defense: Weekly Law Report

Frequently Asked Questions

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May 28, 2015

designed to be dangerous and appeared to be

after having stolen store merchandise, defendant

capable of carrying out its design, which suffices.

Brian P. brandished but did not discharge a canister

Accordingly, we affirm the judgment.

allegations that defendant committed robbery and

and personally used a dangerous weapon, namely

On February 20, 2013, defendant and a companion

brandishing a tear gas canister does not without more

took seven portable Bluetooth speakers from a Wal-

constitute "use" of tear gas, and no evidence

Mart without paying for them. When they were

supported the finding that defendant used a

confronted in the parking lot by Kyle McDaniel, a loss

dangerous weapon. We disagree with both

prevention officer employed by the store, defendant

contentions. Brandishing a weapon constitutes "use"

produced a canister labeled "pepper spray" and said

whether or not the weapon is discharged. And

he would spray McDaniel if he did not get back. After

whether the pepper spray in defendant's canister, if

defendant was subdued, he admitted he threatened

any, was actually dangerous is irrelevant for purposes

McDaniel with the pepper spray to prevent him from

of the enhancement statute, as the weapon was

finding the speakers and said he carried the spray for

Law of Self Defense: Weekly Law Report

tear gas weapon," constitutes "use" of the weapon.

the pepper spray canister was a photograph of the

(People v. Hamilton (1998) 61 Cal.App.4th 149, 154

canister bearing a label that said, "18% Pepper

[defendant pointed an unloaded tear gas gun at the

Spray" and "Warning: Strong Irritant."

victim and clicked the trigger]; People v. Wims (1995)

After a contested hearing, the trial court found

displaying a weapon in a menacing manner].) The

defendant violated Penal Code sections 211

weapon need not be discharged or even be capable

(robbery), 459 (burglary), and 22810, subdivision (g)

of discharge, so long as there is evidence it was

(1) (use of tear gas), and found true the allegation

designed to discharge tear gas and gave the

that defendant personally used a dangerous weapon

appearance of the capability to do so. (See People v.

within the meaning of Penal Code section 12022,

Nelums (1982) 31 Cal.3d 355, 359-360 [defendant

subdivision (b)(1). The trial court declared defendant

used an inoperable firearm].)

a ward of the court, placed him on home probation,

Here, defendant brandished a pepper spray canister

use of a tear gas weapon for purposes of Penal Code

weapon in the commission of a felony or attempted

canister without discharging any spray does not

felony shall be" subject to a sentence enhancement.